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Written by Peter Carter

May 26, 2016

A night shift foreman armed with a poorly performing flashlight and infected with inattention “bred of familiarity and repetition” has been excused of any contributory negligence from a fall over what might otherwise have been an obvious obstacle that shattered his left wrist.

Richard Garth conducted the shut down duties at the Cairns Slipway in Trinity Inlet several days a week over the six months leading up to his accident in August 2012.

At the end of his  shift at around midnight he followed a process and path that varied depending on the work under way in the shipyard at any particular time.

On this “pretty dark night” his lock up process brought him along a familiar route adjacent to the smoko room past a septic pump switch that was covered by a metal box structure.

The fluros under the eaves of the smoko room – which were meant to be illuminated – were not working.

He turned off the smoko room lights. As he held the flashlight in his left hand, he closed the door with his right. He turned to walk away then turned back in darkness to double check that the door was locked. As he turned to leave again, he tripped over the 300 mm high metal box, lost his balance and fell.

His employer accepted that it was partly responsible for the accident because of the obstacle and the absence of lighting but contended, with WorkCover, that the night foreman should bear part of the blame, say, 35%.

This portion of blame arose – said the slipway – because Garth and neglected to use his torch proficiently and he hadn’t made use of the headlights of the company 4WD “to illuminate the area in which he was working.”

In the view of Judge Dean Morzone, Garth “had developed a level of complacency, engendered by familiarity and repetition which was not incompatible with the conduct of a reasonable and prudent man”.

The metal box created a risk which was even more pronounced given the time of day, the end of the shift, inadequate lighting and the “dim” Dolphin brand flashlight with which he was issued.

Paradoxically – explained the judge – those very circumstances made the risk less obvious to the employee.

Garth’s conduct amounted to “mere inadvertence, inattention or misjudgement, not negligence,” he observed. “In my view it would not be just and equitable to render him responsible for any part of the damage”.

WorkCover’s contention that that the metal box was so obvious to a reasonable person in the position of the plaintiff – as referred to in WCRA section 305I(5) was rejected.

Garth had been treated by orthopaedists Sarah Coll and Sam McKewin but it was the views of their colleagues Greg

Couzens and Brett Halliday to which his honour paid most attention.

His Honour overruled WorkCover’s assertion that wrist injuries were the result of a pre-existing condition and adopted

Dr Halliday’s assessment of an 11% upper limb impairment that equated to a 6% bodily deficiency.

Due to a number of factors – delayed diagnosis; significant pain; 4 separate surgical procedures; and the likelihood of a four-bone fusion procedure within 5 to 8 years – an ISV of 6 was upgraded to 10. After all of that general damages were allowed at just $14k!

As for the future economic loss for the 50-year-old, his honour awarded $250k, leading to a total assessment including expenses, of $346k.

Garth v BSE Cairns Slipways Pty Ltd [2015] QDC 343 Morzone QC DCJ published 16/05/2016

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